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'Bungled': NSW new land-clearing laws deemed invalid by court

The Berejiklian government's new land-clearing laws have been thrown into disarray after a court found ministers had failed to follow due process.

The NSW Land and Environment Court on Friday declared the government's Land Management (Native Vegetation) Code 2017 to be "invalid and of no effect".

Environmental groups have feared that broadscale clearing rates in NSW would accelerate as they have done in Queensland. Photo: Wilderness Society

"The Court order means that any clearing that has been done under the invalid code since 25 August [last year] is actually unlawful," the Environmental Defenders Office NSW said in a statement.

The NSW Nature Conservation Counci launched legal challenge against the government’s land-clearing codes last November, warning at the time that landholders should exercise "extreme caution" before removing native vegetation on their properties should the new codes be struck down.

The council argued through its lawyers that the codes were invalid because Primary Industries Minister Niall Blair failed to obtain concurrence of the Environment Minister Gabrielle Upton before making the codes, as is required by law.

The government on Friday conceded this view was correct, the council said.

“The government has bungled the introduction of one of its signature pieces of legislation, and in the process demonstrates its careless disregard for nature in NSW,” Kate Smolski, the council's chief executive, said.

“By the government’s own assessment, they will lead to a spike in clearing of up to 45 per cent and expose threaten wildlife habitat to destruction, including 99 per cent of identified koala habitat on private land," Ms Smolski said, referring to advice from the Office of Environment and Heritage to Ms Upton.

"The NSW government remains absolutely committed to delivering on this important reform and meeting its obligation to act on the recommendations of the Independent Panel," a spokeswoman for Mr Blair said.

The government "is now moving quickly to respond to court’s declaration and its top priority is providing legal and operational certainty to ensure the benefits of the reform continue to be realised", she said.

The Herald also sought comment from Ms Upton.

David Morris, the EDO's chief executive, said the new code had opened the way for broadscale land clearing "without any checks or balances".

"In conceding that they failed to follow due process, the government gives the strong impression of making laws on the run," Mr Morris said.

"Ecologically sustainable development is not just another box to tick – the Environment Minister has a legal responsibility to protect biodiversity in this state," he said.

Labor's environment spokeswoman Penny Sharpe said the court's decision demonstrates "the incompetence" of Ms Upton and "the mendacity" of Mr Blair, "whose only interest is to tear up land clearing laws”.

“Labor calls on the Environment Minister to ensure that she does not sign off on any codes that will increase land clearing and destroy koala habitat across this state," Ms Sharpe said.

Mehreen Faruqi, the Greens environment spokeswoman said that if Berejiklian Government had "any integrity they would tear up these laws permanently and commit to restoring and strengthening native vegetation protections".

"They were were warned that these laws were a disaster but arrogantly refused to listen in their pursuit to appease vested interests," Dr Faruqi said.